Opinion
Case No. 20010929-CA.
Filed July 17, 2003. (Not For Official Publication)
Appeal from the Third District, Salt Lake Department, The Honorable William B. Bohling.
Matthew G. Bagley, Salt Lake City, for Appellants.
Russell A. Cline, Salt Lake City, for Appellee.
Before Judges Billings, Bench, and Thorne.
MEMORANDUM DECISION
Jim and Dorothy Fisher (the Fishers) appeal the district court's grant of summary judgment for Ridgeland Downs Owners Association (Ridgeland). We affirm.
In granting summary judgment for Ridgeland, the district court ruled that "[the Fishers], by placing bars on the outside of three windows of the Unit, replacing the standard gate with a barred gate, and by placing bars on top of the fenced surrounding patio area of the Unit, trespassed on Common Areas and Facilities," in violation of Article 26, section 3 of the Ridgeland Downs Bylaws and rules 2(F) and 2(K) of the Ridgeland Downs General Rules.
The Fishers assert the district court erred in ruling that the Fishers committed trespass because Ridgeland's trespass claim was barred on grounds of waiver and estoppel where Ridgeland failed to object to or take action against similar instances of trespass by other owners (i.e., alterations of common areas). Ridgeland asserts that waiver and estoppel, as a matter of law, do not apply under the facts alleged by the Fishers. We agree.
In the proper case, "estoppel is undoubtedly a defense to an action of trespass[.]" 75 Am. Jur.2d Trespass § 82 (1991) (footnote and citation omitted); cf. Salt Lake City v. Utah Lake Farmers Ass'n, 4 Utah 2d 14, 286 P.2d 773, 777 (1955) (allowing defendants to assert the defense of estoppel where defendants encroached on plaintiffs' land for nearly thirty years with plaintiffs' "full knowledge [and] approval" (emphasis added)). However, a landowner's "[f]ailure to notify the defendant of the trespass does not operate as [a waiver or] an estoppel." 87 C.J.S. Trespass § 44 (2000) (footnote and citations omitted). Likewise, "failure to oppose or object to a trespass is not a defense[.]" Id.; see also Cityco Realty Co. v. Slaysman, 153 A. 278, 280-82 (Md. 1931) (holding that plaintiff's failure to inform defendant of plaintiff's ownership of the land upon which defendant encroached was not a defense), overruled on other grounds by Zimmerman v. Summers, 330 A.2d 722 (Md.Ct.App. 1975). Accordingly, we hold that Ridgeland did not waive and is not estopped from maintaining its trespass action against the Fishers. Affirmed.
Even if waiver was a defense in this case, the Fishers' waiver argument fails on the merits. "A waiver is the intentional relinquishment of a known right. To constitute a waiver, there must be an existing right, benefit, or advantage; a knowledge of its existence and an intention to relinquish it." Rowley v. Marrcrest Homeowners' Ass'n, 656 P.2d 414, 418 (Utah 1982) (quotations and citations omitted). Nothing in the record supports the Fishers' contention that by failing to object to other instances of trespass, Ridgeland intended to relinquish its known right to take action against trespassers. Futhermore, "silence, absent a duty to speak, does not constitute waiver" and "failure to object immediately to a party's unlawful act does not constitute waiver of a right to bring legal action." Baggett v. Cyclopss Med. Sys., Inc., 935 P.2d 1265, 1270 (Utah Ct.App. 1997).
WE CONCUR: Russell W. Bench, Judge, and William A. Thorne, Jr., Judge.